National Plan to Address Elder Abuse

Following the recommendations of the Australian Law Reform Commission Report on Elder Abuse handed down in June 2017 a national plan to offset elder abuse is currently being developed by federal and state governments.  Nationally consistent laws to respond to elder abuse are among the key goals that also include:

  • promoting the autonomy and agency of older people;
  • addressing ageism and promoting community understanding of elder abuse;
  • safeguarding at-risk older people and improving responses;
  • building the evidence basis.

I have spoken about elder abuse in past blogs.  Due to my role as an Aged Care Placement Consultant I work closely with elderly people and their families and have, at times, been aware of this taking place. so I was pleased to see the ALRC report and recommendations delivered last year.  The development of a national plan from these recommendations, that is expected in draft version by the end of this year, will be very welcome.

Attorney-General Christian Porter stated at the recent National Elder Abuse Conference in Sydney that the national plan would bring government, business and community stakeholders together to properly address this critical issue. He told the audience that addressing elder abuse was not just a legal issue so attorneys-general would work together with ministers from health, community services and other portfolios to develop the plan; in consultation with the community sector, seniors, business and financial sectors.

Meanwhile Victoria is the first state to develop its own action plan, launched this February. The Elder Abuse Community Action Plan for Victoria was developed by the National Ageing Research Institute, supported by Seniors Rights Victoria, the Office of Public Advocate and community service providers. It sets out 10 priorities to address elder abuse:

  • Clarify the relationship between family violence and elder abuse.
  • Raise community awareness of elder abuse and promote a positive image of older people to reduce ageism.
  • Increase availability of “older person centred” alternatives to disclosing elder abuse.
  • Standardise tools for recognising abuse and develop and implement a common framework for responding to elder abuse.
  • Increase availability of family (elder) mediation services including for people living in rural areas and CALD communities.
  • Provide education and training on elder abuse for all health professionals in health and aged care services.
  • Improve data and increase evaluation.
  • Clarify whether carer stress is a risk factor for elder abuse.
  • Improve understanding and response to elder abuse in CALD and Aboriginal and Torres Strait Islander communities.
  • Improve housing options for both perpetrators and victims of elder abuse.

It’s Time to Examine Attitudes to The Elderly To Stop Abuse

“Every time we impose our will on another, it is an act of violence.”-  Mahatma Gandhi

Mahatma Ghandi

This statement from someone considered as very wise within our society, when applied to the subject of elder abuse, makes one stop and think very deeply about our own behaviour and the acceptance of societal attitudes today.

We need to consider carefully the normalisation of abusive and dehumanising practices. How does this come about? Through the removal of rights, freedom and liberties that are generally afforded to all members of our society, which are often socially condoned. Removing an elderly person’s rights can often be justified under the guise of ‘duty of care’ and this removal of rights can often be found in institutional settings, like a Residential Aged Care Facility.

Some of the beliefs that can contribute to covert abuse are that older people are incapable of protecting themselves or making sound and rational decisions and that the way to protect them is to impose controls and restrictions on their behaviour. There is also a fear that allowing an older person to take risks means that the care provider is being negligent.

Some questions that should be asked that help us to understand our behaviour with regards to elder abuse are:
• How might this belief help or hinder my reaction and response to elder abuse?
• Would I be comfortable if this policy, practice or procedure was applied to me?
• If I encountered these restrictions in the community or in my own home would be I be comfortable with complying with them?
• If this policy, procedure or practice was applied to younger people would I be confident that they would consider it to be fair and reasonable?
• If this policy was applied generally to a group of people based on their race or gender alone would it be considered appropriate and acceptable?

Unfortunately, I do see examples of elder abuse in my role as an advocate and consultant to elderly people, assisting them to find a suitable aged care residence. This abuse can be in their own home, amongst family members or within facilities. A change in attitude to ageism is essential to stop this sort of behaviour in our society.


Enquiry Into Elder Abuse Recommendations for Aged Care

The Australian Law Reform Commission on the Enquiry into Elder Abuse with regard to Aged Care found that two of the areas highlighted by stakeholders needing improvement were transparency and accountability. As an Aged Care Placement Specialist these recommendations are especially critical to my clients, who are moving into aged care facilities.  The Commission is recommending that aged care providers be required to report certain types of abusive conduct, which become ‘reportable incidents’, to the Aged Care Complaints Commissioner with the Commissioner’s office taking on an oversight and monitoring role of the aged care provider’s response to the incidents of abuse. This complements existing functions of the Aged Care Commissioner and enhances safeguards, improving responses by the aged care providers.

Stakeholders also wanted enhanced employment screening for people working in aged care and looked to the working with children checks as an example. Currently aged care workers are required to have a police check, but the Commission noted that not all workplace conduct that could be of concern will be identified in a police check. The Commission proposes that any findings made against a worker from the ‘reportable incident’ scheme and other disciplinary findings, would be ‘flagged’ when a person applies to work in aged care. It also proposed that unregistered aged care workers, such as assistants in nursing and personal care workers, be subject to a code of conduct, bringing them into line with professionals such as Doctors and Nurses already subject to codes of conduct.

Another area for reform that was raised by stakeholders was in relation to restrictive practices or interventions that restrict the rights and freedoms of movement of a person. The primary purpose of using these practices is to protect the person or other people they are around from harm. Some of the practices reported were people being locked in a room or ward, physical restraint like clasping or holding a person’s hands or feet together, mechanical restraints such as being tied to beds or chairs and chemical restraints such as sedatives. Of concern was that restrictive practices are sometimes used as a means of coercion, discipline, convenience or retaliation by staff or other support people. They are most often used on people with an intellectual disability or cognitive impairment who exhibit what has been described as ‘challenging behaviours’ (eg: striking themselves or others or wandering). The Commission concluded that the use of these practices can be abusive at times.

The Commission proposes that these practices be regulated through a legislative framework that would apply to residential aged care. They should only be used to prevent physical harm, and only to the extent necessary to prevent the harm and before enacted require the approval of an independent decision maker, such as a senior clinician, and that the practice only be used as prescribed in a person’s behaviour management plan.

The Commission is now taking responses to its recommendations and final proposals will be published in August 2017.  In my role I inspect many aged care facilities and most are well run with the residents’ best interests at heart, so I look forward to seeing these reforms that will help to ensure that all facilities treat their elderly residents with the utmost care and respect.


Recommendations Have Been Made To Address Elder Abuse

In my work as an Aged Care Placement Consultant I sometimes come across abuse of my elderly clients and I take this very seriously. I attended the the 4th National Elder Abuse Conference 2016 in Melbourne last year following where they announced that a national enquiry into elder abuse was to be conducted by the Australian Law Reform Commission. The Commission has come up with a range of recommendations and have accepted responses to those recommendations. They will announce the final recommendations in August 2017.  I have been interested to see what these recommendations are and note that some refer to guardianship, enduring documents, aged care as well as Centrelink payments and family agreements.

In life each adult has personal and lifestyle decisions that need to be made and they also need to be able to manage their own financial affairs. However, if the tribunal is satisfied that a person no longer has the capacity to manage those aspects of their life, due to a loss of legal capacity, it will appoint a Guardian and Financial Administrator. Typically, the person’s family member would be appointed if there is one available to perform the role. Only where there is not a family member would an external party like the State Trustees be appointed. I have on occasion been asked to find suitable aged care accommodation for a client by a State appointed Guardian.

Unfortunately, because the Guardian and Financial Administrator has complete control over the elderly person of both financial and lifestyle matters it does make the elderly person vulnerable and there is a risk these arrangements can be abused. This could be deliberate where the Guardian and Financial Administrator uses the powers to take money away from the person under the financial administration order, but the enquiry found that the most common type of elder abuse is really mismanagement of the funds through misunderstanding or confusion.

So the Commission’s recommendations are that more information about the nature of the role is made available in tribunals and that people accepting this appointment sign an undertaking that they understand the nature of their obligation. They believe this would minimise the risk of someone taking on the role without understanding their responsibilities and the scope of the role.

The best way to protect a person when they lose capacity is to be prepared before it happens and put in place enduring documents where the person appoints someone in their family they consider is best suited to make decisions on their behalf. The enquiry found that one of the risks with enduring documents is that they can be used after they are revoked. They made several recommendations, firstly to establish a national online register of enduring documents so documents can be verified to ensure that they only operate when they are genuinely authorised by the person. Secondly, to develop a suite of national safeguards that include enhanced witnessing requirements so a person isn’t under duress when signing, certification to ensure the person understands what they are signing, protections from attorneys’ conflict of interest; so they don’t make decisions to benefit themselves rather than the principal.
Also the language used for these roles was assessed and the Commission proposes that they be renamed representative’s agreements, reflecting that when you’re acting on behalf of someone else under these document you’re essentially representing the person.  Another recommendation was for a mechanism for low cost compensation be available in cases where a person has been financially abused.
These recommendations seem like sensible and simple solutions that would help to offset the risk of elder abuse that can occur when a person loses capacity. Next week’s news blog will explore the problems of elder abuse in aged care and the Commission’s recommendations.

Enduring Powers of Attorney and Guardianship Help Offset Elder Abuse


Powers of attorney have been used for centuries. The power of attorney gives legal power to a person (attorney) to deal with financial and property matters on behalf of the person (principal) making the power. Originally, under the common law, a power of attorney terminated automatically when the principal lost legal capacity through loss of capacity (such as dementia) because the agent (attorney) could not by law make any decisions on behalf of the principal that the principal could not make themselves.  To rectify this situation legislation was introduced in the 1970’s and 80’s to establish ‘enduring’ powers of attorney, that endure beyond when the principal has lost capacity for decision making.  A person can now appoint a trusted person (or persons) as enduring power of attorney to act on their behalf should they lose capacity, upholding important principles of choice and control. This avoids the need for a tribunal appointed decision maker and may also help protect against elder abuse.

This was a great improvement, particularly for the elderly.  However, under law it was not possible to appoint another person to make lifestyle or personal decisions regarding matters like medical treatment or the most appropriate accommodation for a person who has lost capacity.  Enduring guardianship was first introduced in SA in 1993 to address this, followed by all other states and territories. In my role as an Aged Care Placement Specialist I often work with enduring powers of attorney and enduring guardians.

Currently, although all states and territories recognise enduring documentation from other states and territories there are differences.  For example, in Victoria and Queensland the enduring power of attorney and guardianship are in one document, whereas in New South Wales it is two separate documents. South Australia has a separate process of enduring powers of attorney for financial matters and advance care directives legislation, allowing a person to appoint a substitute decision maker (equivalent to an enduring guardian).

Obligations of the attorney were not set out but were defined by common law and equitable fiduciary duties, such as duties of loyalty, duties of due care and diligence whilst guardians were expected to act in the ‘best interests’ of the principal. Recently, Queensland and Victoria have passed legislation that set out principles to guide decision making by attorneys, seeking to uphold the fundamental rights of the principal. This approach is not applied consistently across the states and territories. The changes made in Victoria and Queensland will certainly help to clarify these very important roles and decision making at a critical time in the principal’s life.

If you seek more detailed information read the document on Enduring Powers of Attorney and Enduring Guardianship by the Australian Law Reform Commission.

Recommendations to Help Curtail Financial Elder Abuse Welcomed


The Australian Law Reform Commission has recommended a national register of people holding power of attorney in a discussion paper on elder abuse, as they have found that enduring power of attorney is being used by some people as a “licence to steal”. At present the system has no way of verifying attempts to withdraw or transfer money on behalf of an elderly person. The report recognises that “early inheritance syndrome” is a form of financial abuse where children try to get financial gain out of their parents before their death.

Following widespread reports of psychological, physical and financial abuse and neglect of elderly people by relatives, friends and parents the Attorney General, George Brandis, established the enquiry by the ALRC in February 2016. About 6 per cent of elderly Australians become victims of elder abuse annually, suffering harassment, assault, theft, bullying, forced sale of assets and property. Some are forced to pay bills and have their properties taken over.  I wrote of a client of mine who suffered this situation in a blog in June  and have seen other examples of elderly abuse in my role as a Placement Specialist for aged care accommodation. It is distressing to know this sort of abuse is going on and I am relieved to see recommendations coming out of this report which will hopefully help to curtail the abuse.

“In developing the proposals in this discussion paper we have worked to balance the autonomy of older people with providing appropriate protections, respecting the choices that older persons make, but also safeguarding them from abuse,” Professor Croucher said in a statement calling for community feedback on the proposals by February 27th, 2017.

Some of the recommendations include:
 A provision in the Code of Banking Practice to prevent financial elder abuse.
Two people be required to approve access to a person’s bank account.
People who are carers, bankrupt, prohibited from directing a company or have a criminal record of fraud or dishonesty be prevented from being enduring attorneys.
It’s a shame there’s not a greed meter that could be applied to anyone who is appointed as Power of Attorney.  Of course, most relatives are very caring and respectful in this role and, is always the case with abhorrent behaviour, it is only a few that create problems.

Sharing His Story Through Pictures

Don's Story Board

Don’s Story Board

Sometimes one is lucky enough to make a friend of a client and in the case of Don, who has no family,that has been the case. I called in to see him recently to take him a small gift and card for his birthday the next day.  As he was well settled into his new Aged Care Facility, which I had assisted him to find, I was hopeful that this year would be a far cry from his birthday last year when I was the only person to acknowledge his special day.

When I arrived I was met by the lifestyle person who told me that Don was going to have a party the following day to celebrate his birthday with his fellow residents and staff.  He wanted to make a photo board of his life and needed some assistance, could I help?

His pile of old photographs was fascinating, showing him at different stages in his life and in other countries he had visited.  I was impressed at his bravery travelling far and wide with his inability to hear and speak properly. He had spent many months in other cultures such as Samoa and Sri Lanka where he was a freelance photographer. Helping Don with this project gave me enormous satisfaction and an insight into parts of his life that I would never have known about. I generally enjoy my role as a placement consultant in the aged care field, but this was a deeper level of engagement.

Don's Travels

Don’s Travels

More importantly was the pleasure and excitement it gave Don sharing his life story with others.  It reminded me how important a person’s life history is to them and how much pleasure it gives them to share their story. This year I know Don will have a happy birthday!